State v. DeLao, 00-1638-CR.
| Decision Date | 02 May 2001 |
| Docket Number | No. 00-1638-CR.,00-1638-CR. |
| Citation | 629 N.W.2d 825,2001 WI App 132,246 Wis.2d 304 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Media DELAO, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven P. Weiss, assistant state public defender, of Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeffrey J. Kassel, assistant attorney general, and James E. Doyle, attorney general.
Before Nettesheim, Anderson and Snyder, JJ.
¶ 1.
Media DeLao appeals from a judgment of conviction for obstructing a police officer, possession of a short-barreled shotgun and harboring/aiding a felon, and from an order denying her motion for postconviction relief. DeLao makes three arguments in favor of her appeal: (1) the State should not have been allowed to amend the information after the close of evidence; (2) the State violated discovery rules by failing to provide DeLao with her previous statements and should not have been allowed to impeach her with said statements; and (3) the jury should not have been allowed to discontinue deliberations, return home for the evening and return the next day without going on the record. We agree that DeLao's statements should not have been used to impeach her trial testimony, and we reverse the judgment and the order on that basis.
¶ 2. On June 9, 1999, a criminal complaint was filed charging DeLao with five crimes: obstructing an officer, contrary to WIS. STAT. § 946.41(1) (1999-2000);2 harboring/aiding a felon, contrary to WIS. STAT. § 946.47(1)(b); two counts of possession of a short-barreled shotgun, contrary to WIS. STAT. § 941.28(2); and possession of drug paraphernalia, contrary to WIS. STAT. § 961.573(1). These charges arose from an incident at DeLao's house on June 7, 1999. While at DeLao's house, Desmond Stalsberg, DeLao's boyfriend, got into a fight with another man, John Sabala, during which Stalsberg shot Sabala in the face.
¶ 3. The charges against DeLao were the result of her behavior after the shooting. The complaint alleged that DeLao lied to the police about her presence during the shooting, misled the police about Stalsberg's whereabouts, disposed of shotgun cartridges and cleaned up blood at the crime scene. In addition, during a search of her home, police found two short-barreled weapons and a crack pipe.
¶ 4. On June 14, 1999, after a preliminary hearing, DeLao was bound over for trial on each of the felony charges. That same day, the State filed an information containing charges identical to those in the complaint.
¶ 5. Pretrial, DeLao filed a discovery demand, specifically demanding that the State provide her with written summaries of any "oral, written or recorded statements" she made, pursuant to WIS. STAT. § 971.23(1)(b).
¶ 6. A jury trial commenced on Tuesday, July 27, 1999. During opening statements, DeLao's attorney announced that DeLao would take the stand and testify on her own behalf. On the second day of trial, after the State had rested, Assistant District Attorney Sharon Riek advised the trial court that she had in her possession statements made by DeLao, previously undisclosed to the defense; Riek intended to use these statements to impeach DeLao if she testified. Riek stated that the State's primary investigator in this shooting incident, Douglas Chaussee of the Mount Pleasant Police Department, had just that day made her aware of these statements. After Chaussee testified and the State rested its case, Chaussee informed Riek about statements DeLao had made to Detective James Prioletta of the City of Racine Police Department. At Chaussee's recommendation, Prioletta interviewed DeLao on June 29, 1999, about an unrelated crime involving Stalsberg, after DeLao had been arrested and was in jail; Prioletta then told Chaussee about DeLao's statements. Chaussee testified that he learned about the statements prior to trial but did not share this information with Riek until after he had testified and the State had presented its case.
¶ 7. DeLao objected to the use of these statements, arguing that the State was in violation of discovery rules. Despite these objections, the trial court ruled that if DeLao testified, the State could use the statements for impeachment purposes. DeLao testified on her own behalf, after which the defense rested; Prioletta was then called as a witness to impeach DeLao's testimony.
¶ 8. After the close of evidence, during the final jury instruction conference, the State asked to file an amended information, adding a charge of harboring/aiding a felon, contrary to WIS. STAT. § 946.47(1)(a), in addition to the original harboring charge based upon § 946.47(1)(b). Despite DeLao's objections, the trial court allowed the State to amend the information.
¶ 9. In the morning on the third day of trial, Thursday, July 29, 1999, the attorneys gave their closing arguments, the trial court instructed the jury, and the jury began its deliberations. The next entry in the record is the jury's verdict on Friday July 30, 1999. The minutes sheet for July 29, 1999, contains a notation that the jury was excused from deliberations and allowed to return home at 4:50 p.m. that day. However, this break in deliberations was not memorialized in the record. In addition, there is no record of the jury's return to deliberations on Friday morning, July 30, 1999. The transcript begins with the taking of the verdicts, which appears to have happened at 10:45 a.m.
¶ 10. The record further indicates, by virtue of the verdict forms, that the jury reached verdicts on four of the six counts during the first day of deliberations. On July 29, 1999, the first day of jury deliberations, DeLao was found guilty of obstructing and possession of a short-barreled shotgun; she was found not guilty of the original count of harboring/aiding a felon and not guilty of the other count of possession of a short-barreled shotgun. On July 30, 1999, the second day of jury deliberations, DeLao was found guilty of the amended harboring/aiding a felon charge and not guilty of possession of drug paraphernalia.
¶ 11. DeLao was sentenced to one year and one day in prison on the harboring/aiding a felon charge; the trial court also imposed and stayed maximum sentences on the obstructing and short-barreled shotgun charge and placed DeLao on three years' consecutive probation.
¶ 12. DeLao filed a motion for postconviction relief, which was heard and denied. She appeals her conviction and the denial of her postconviction motion.
¶ 13. DeLao argues that the trial court erred in three respects: (1) in allowing the State to amend the information after the close of evidence during the final jury instruction conference; (2) in allowing the State to impeach DeLao with statements that were not disclosed to the defense during discovery; and (3) in allowing the jury to stop deliberations, go home for the evening and resume deliberations the next morning without ever going on the record. Because we agree with DeLao that the trial court erred in allowing the State to impeach her with statements previously undisclosed to the defense, we need not address her remaining arguments.
¶ 14. This appeal concerns the proper application of discovery statute WIS. STAT. § 971.23. The State argues that no § 971.23 discovery violation occurred here. In the alternative, the State argues, if there was a discovery violation, there was good cause for the violation. We disagree with both of these assertions.
¶ 15. On June 30, 1999, DeLao filed a discovery demand asking the State to:
WISCONSIN STAT. § 971.23 addresses discovery and states, in relevant part:
¶ 16. The State argues that because the district attorney was unaware of these statements, the statements were not ones that the district attorney planned to use in the course of trial and thus...
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State v. DeLao
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